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that a workman met with an accident, course of the employment cannot be in the course of the employment; it must based on mere surmise, conjecture, and also be proved that the accident arose guess.66 But if the claimant shows that "out of the employment.65 The finding the injury was one that might naturally that the accident arose out of and in the follow an accident suffered in the em[1912] W. C. Rep. (Eng.) 193, 5 B. W. ful, and incapacitated him for work, but the C. C. 385; Stapleton v. Dinnington Main medical evidence was to the effect that Coal Co. (1912) 107 L. T. N. S. (Eng.) 247, such inca pacity was not caused by the first 5 B. W. C. C. 602; Marshall v. Sheppard injury, but by another injury, as to which [1913] W. C. & Ins. Rep. (Eng.) 477, 6 B. there was no evidence when it occurred, W. C. C. 571; Sherwood v. Johnson (1913] an award of compensation given on the W. C. & Ins. Rep. (Eng.) 57, 5 B. W. C. C. theory that the incapacity was the result 686; Morgan v. Cynon Colliery Co. (1915) of the first injury will be set aside. Noden 8 B. W. C. C. (Eng.) 499; Hopley v. Pool v. Galloways [1912] 1 K. B. (Eng.) 46, (1915) 8 B. W. C. C. (Eng.) 512.

[1911] W. N. 192, 81 L. J. K. B. N. S. 28, The burden is upon the dependent of a 105 L. T. N. S. 567, 28 Times L. R. 5, 55 deceased workman who was employed as an Sol. Jo. 838, [1911] W. C. Rep. 63, 5 B. engine driver, to show that, where after W. C. C. 7. waiting for a while on his engine at a sid- A county court judge is not justified in ing for an express train to pass, he got drawing an inference which is only based down from his engine and left the stoker in upon surmise and conjecture. Pugh v. Dudcharge, he was in the course of his employ. ley [1914] W. C. & Ins. Rep. (Eng.) 265, 7 ment. Dyhouse v. Great Western R. Co. B. W. C. C. 528. In this case, an explosion (1913) 109 L. T. N. S. (Eng.) 193, [1913] of powder caused the death of the workW. C. & Ins. Rep. 491, 6 B. W. C. C. 691.

man, and the explosion must have been 65 Pomfret v. Lancashire & Y. R. Co. due to the fact that the powder had been [1903] 2 K. B. (Eng.) 718, 72 L. J. K. B. uncovered. The county court judge drew N. S. 729, 52 Week. Rep. 66, 89 L. T. N. S. the inference that as the workman was the 176. Collins, M. R., said: "The burden, only person who was handling the powder, and the whole burden, of proving the con- he himself must have uncovered it; but the ditions essential to the obtaining an award court of appeal held that such an inference of compensation, rests upon the applicant, was wholly unwarranted. and upon nobody else, and if he leaves the A county court judge's explanation that case in doubt as to whether those conditions an accident arose out of and in the course are fulfilled or not, where the known facts of the employment, if founded merely on are equally consistent with their having surmise, cannot be sustained, although such been fulfilled or not fulfilled, he has not explanation is by no means improbable. discharged the onus which lies upon him. Booth v. Leeds & L. Canal Co. [1914] W. C. In my opinion, the evidence in the present & Ins. Rep. (Eng.) 310, 7 B. W. C. C. 434. case is quite consistent with the view that The county court judge is not justified the accident happened in consequence of in drawing the inference of injury from something which did not arise out of the accident arising out of and in the course of employment."

the employment, where a collier died of 66 Burwash v. Leyland (1912) 107 L. T. blood poisoning due to an abscess in the N. S. (Eng.) 735, 28 Times L. R. 546, 54 knee, and there was no evidence as to how Sol. Jo. 703, [1912] W. C. Rep. 400, 5 B. W. the abscess was caused, except that his work C. C. 663.

was in a very narrow space, which necessiWhere upon medical evidence the arbi- tated his working on his knee.

Howev. trator finds that the heat apoplexy from Fernhill Collieries [1912] W. C. & Ins. Rep. from which a ship stoker was suffering (Eng.) 408, 107 L. T. N. S. 508, 5 B. W. might have been caused by the heat of the C. C. 629. sun or by the heat of the stoke holes, the ar

That an abrasion on a collier's thumb bitrator is justified in holding that the might have been caused by his work is not evidence will not permit him to draw the sullicient to entitle him to compensation. inference that the injury was caused by an Jenkins v. Standard Colliery Co. (1911) 105 accident arising out of and in the course of L. T. X. S. (Eng.) 730, 28 Times L. R. 7, 5 the employment.

Olson The Dorset B. W. C. C. 71. (1913) 6 B. W. C. C. (Eng.) 658.

Coal dust found in a scratch is not sufThe onus has not been discharged by the ficient to show that the collier received the dependents of a craneman in the boiler scratch while in his employment. Wood v. shop of locomotive works, who was found Davis (1911) 5 B. W. Č. Č. (Eng.) 113. crushed on the top of a crane in connection A workman who cut his finger at home, with which he had no duty to perform and subsequently contracted blood poison, where his presence thereon was wholly un- cannot recover compensation, where the poiaccounted for. Millers v. North British son germs might have been conveyed into Locomotive Co. (1909] S. C. 698, 46 Scot. the wound in any one of several ways other L. R. 755, 2 B: W. C. C. 80.

than the employment. Chandler v. Great Where the applicant had suffered an in- Western R. Co. [1912] W. C. Rep. (Eng.) jury to his hand in 1902, and in 1908 his 169, 106 L. T. N. S. 479, 5 B. W. C. C. 254. hand became inflamed, swollen, and pain

ployment, the onus is upon the employer the course of and out of the employto show that the injury was due to some ment.68 But where a sailor falls overother cause.67

board in some unexplained way while The unexplained drowning of a sea- discharging his duty, the inference may man not in the discharge of his actual' be drawn that the accident arose not duties furnishes no ground for drawing only in the course of but also out of the the inference that the accident arose in employment.69 67 Where the workman felt a pain in his , tion for compensation on account of the

position, and it was found that the cartilage an extract from the log, which stated that of his knee was ruptured, he suffered an the deceased, while returning to the ship injury by accident, entitling him to com more or less under the influence of liquor, pensation, although he had, about three refused the aid of the night watchman or years previously, while in the employment policeman, and on reaching the top step of of other employers, wrenched his knee and the gangway suddenly overbalanced and received compensation for some weeks, but fell, the applicant failed to prove that the thereafter had worked continuously as an accident arose out of and in the course of ordinary workman to the time of the pres. ; his employment. McDonald v. The Banana ent injury. Borland v. Watson (1912] S. C. (1908] 2 K. B. (Eng.) 926, 78 L. J. K. B. 15, 49 Scot. L. R. 10, 5 B. W. C. C. 514. N. S. 26, 99 L. T. N. S. 671, 24 Times L. R.

68 In Marshall v. The Wild Rose (1910) 887, 52 Sol. Jo. 741, 1 B. W. C. C. 185. A. C. (Eng.) 486, 79 L. J. K. B. N. S. 912, The finding of the county court judge 103 L. T. N. S. 114, 26 Times L. R. 608, that the accident did not arise out of the 54 Sol. Jo. 678, 3 B. W. C. C. 514, 11 employment will be sustained, where the Asp. Mar. L. Cas. 409, 48 Scot. L. R. 701, evidence showed that a sailor was seen at affirming_[1909] 2 K. B. (Eng.) 46, 78 8 P. M., about to leave his ship to get proL. J. K. B. N. S. 536, 100 L. T. N. S. 739, visions, and his body was found the next 25 Times L. R. 452, 52 Sol. Jo. 448, 2 B. W. morning in the dock 10 or 15 feet from the C. C. 76, a sailor left his berth on a hot gangway. Mitchell v. The Saxon (1912) night to cool himself on the deck, and his 5 B. W. C. C. (Eng.) 623. body was found the next morning under the The county court judge is justified in gunwale, where members of the crew some holding that he was not satisfied that the times sat down. No more was known about death of the deceased was due to accident the occurrence. Although the court of ap- ' arising out of and in the course of his peal conceded or took it for granted that employment, where the deceased his death was due to accident, recovery was · barge boatman, and had been talking with denied on the ground that the death did a fellow boatman on the wharf, and then not arise out of as well as in the course of walked away, carrying a boat hook to take the employment. The language used in the : his own full barge down to the dock, and judgment in the House of Lords indicated six or seven minutes later the fellow boatthat in their opinion it could not be inferred man saw the body in the water 90 yards that death was due to accident.

was

a

-

from the spot where they had parted, and In Bender v. The Zent (1909] 2 K. B. about 20 yards from his barge. Bines v. (Eng.) 41, 78 L. J. K. B. N. S. 533, 100 L. Gueret [1913] W. C. & Ins. Rep. (Eng.) 158, T. N. S. 639, 2 B. W. C. C. 22, where a 6 B. W. C. C. 120. ship's cook on a perfectly calm day in mid 69 There was evidence to support the inAtlantic went on deck about 5 o'clock in ference that the accident arose out of the the morning, it being daylight, and was last employment, where the workman was a ship seen looking over the rail, and nothing fireman, and it was proved that in tropical more was known of him, his absence from regions, where the vessel was, it was the the ship being discovered half an hour later, habit of the firemen to go on deck for it was held that the burden of proving that fresh air, and that the fireman in question the accident causing death arose "out of" had worked longer hours than usual, owing as well as "in the course of” the employ to the ship being shorthanded, and was seen ment had not been discharged by the ap- ' coming up on deck for water shortly beplicant.

fore he was last seen in the stoke hole, and The widow of the engineer of a ship ly. subsequently disappeared in ing in a dry dock cannot recover compen plained manner. Lee v. Stag Line (1912) sation, where the only evidence produced : 107 L. T. N. S. (Eng.) 509, 56 Sol. Jo. by her was that the engineer, after com. 720, [1912] W. C. Rep. 398, 5 B. W. C. C. pleting his morning's work at the ship, 660. went home to his dinner, and that he was Where an officer of a vessel who had preseen talking to somebody on his way back viously complained of feeling dizzy disapjust prior to the accident, and that his peared in broad daylight and calm weather body was subsequently found in the dry from the deck, where he had been on duty. dock. Gilbert v. The Nizam (1910) 2 K. B. The Swansea Vale v. Rice (1911) 104 L. T. (Eng.) 555, 79 L. J. K. B. N. S. 1172, 103 N. S. (Eng.) 658, 27 Times L. R. 440, 55 L. T. N. S. 163, 26 Times L. R. 604, 3 B. W. Sol. Jo. 497, 4 B. W. C. C. 298, 48 Scot. L. C. C. 455.

R. 1095 (there was no suggestion of murder Where the only evidence in an applica- I or suicide.) The order of court of appeal

some

unex

Although the accident must be proved, in which it was held that the circumand it cannot be based on mere surmise stances surrounding the accident were or guess, nevertheless it may be proved sufficient to prove that there had been by circumstantial evidence. In the note an accident arising out of and in the below will be found a number of cases course of the employment.70 was affirmed in [1912] A. C. (Eng.) 238, 81 | point where he might have been, in the L. J. K. B. N. S. 672, [1912] W. C. Rep. furtherance of his duties, to attend to the 242, 12 Asp. Mar. L. Cas. 47, 104 L. T. N. S. shore end of the mooring ropes. 658, 55 Sol. Jo. 497, 27 Times L. R. 440, 70 The county court judge may find that Ann. Cas. 1912C, 899.

an injury to a boy employed in the defendThe death of the chief engineer of a ant's boot and shoe factory arose out of steamer may be found to be due to an acci- his employment, where the employers dent arising out of and in the course of the claimed that the injury was caused by the man's employment, where he was last seen boy's playing around a belt, and the boy behind the wheel house containing steam claimed that he had not touched the belt steering gear, and it was shown that the with his hand that afternoon, but that his tips of the propeller were bent, and that sleeve was caught in it and he was drawn. the screw began to work faster than it around the machinery, and the county court should, and that the engineer was worried judge accepted the story of the boy, alabout the condition of the steering gear. though he further found that the belt Proctor v. The Serbino (1915) 31 Times L. catching in his shirt would not have been R. (Eng.) 524. The master of the rolls sufficient to draw him into the machinery, said: “I think, too, that a sailor on board but that in all probability when the belt ship at sea, whose employment is con- caught him in the shirt he put out his hand tinuous, stands in a somewhat special po- and grabbed the belt to release himself, and sition, and that if it can be shown or prop was thus drawn into the machinery. Durerly inferred that, when last seen, he was rant v. Smith (1914] W. C. & Ins. Rep. engaged in doing his duty as a seaman, the (Eng.) 282, 7 B. w. C. C. 415. The court court may presume that the accident with took the view that the boy's statement which he met arose out of his employment.” | that he had not touched the belt with his

Where the body of a man employed on hand might mean no more than that he a vessel as a cook and steward, who was had not touched it while playing with it. last seen alive lying in his bunk, was found A county court judge was justified in on the following day in the sea a short dis- finding that a mason's helper who was put tance from the vessel, and the medical evi- to work to clean down the ceiling of an dence showed that his death was due to archway over a door in the building, which drowning, and he had never been seen the work was to be done in the inside, did not worse for liquor, but was subject to nausea, go outside of his employment in going upon and had been frequently seen vomiting over some scaffolding outside of the archway, the side of the vessel, the finding of the which had been left by some other workarbitrator that the accident arose out of man, where there was some evidence to and in the course of the man's employment show that the work which he had to do must be affirmed, since there was evidence could better be done from the outside than to support it. Kerr (or Lendrum) v. Ayr from the inside. Roberts v. Trollop (1914) Steam Shipping Co. (1914; H. L.) 30 Times 7 B. W. C. C. (Eng.) 678. L. R. 664, [1914] W. C. & Ins. Rep. 438, The county court judge is justified in [1914] W. N. 327, 58 Sol. Jo. 737, (1914) inferring that the injury arose out of and S. C. (H. L.) 91, 51 Scot. L. R. 733, 7 B. W. in the course of the employment, where C. C. 801, reversing (1913] S. C. 331, 50 the evidence showed that the workman, Scot. L. R. 173, [1913] W. C. & Ins. Rep. who was a butcher's canvasser, and who 10, 6 B. W. C. C. 326.

rode a bicycle in the course of his work, An arbitrator is justified in finding that arrived at his employer's shop in the mornthe death of an engineer of a steam tug ing, covered with mud and wheeling the mawas due to an accident arising out of the chine, and was lame, and complained of employment, where he was seen at 5 A. M. injury caused by a slip of the machine. in his bunk, and one hour afterwards his Haward v. Rowsell (1914) W. C. & Ins. Rep. bunk was empty and his work clothes were (Eng.) 314, 7 B. W. C. C. 552. beside it, and some days after his body was A man employed as a stoker, who had found clad in his night clothes, and death been ruptured three or four years before, was caused by drowning, there being no and was wearing a truss sufficient to presuggestion of suicide. Mackinnon v. Miller vent strangulated hernia under ordinary [1909] S. C. 373, 46 Scot. L. R. 299.

circumstances, who left home well and in In Richardson v. The Avonmore (1911) excellent spirits, and shortly after his re5 B. W. C. C. (Eng.) 34, it was held that turn to work was found to be in great the county court might draw the inference agony, and died shortly afterwards from that the death arose out of the employment, strangulated hernia, may be found to be although there was no direct evidence, where suffering from injury by accident arising the deceased was in charge of a ship lying out of the employment, although there was in dock moored to a jetty, and it would no evidence as to how the hernia came appear from where his body was found down so as to strangulate, nor of any that he had fallen into the dock from a 'specially heavy work done by the deceased

on

on that date to account for it. Scales v. The inference may be drawn that the West Norfolk Farmers' Manure & Chemical injury arose out of and in the course of Co. [1913] W. C. & Ins. Rep. (Eng.) 165, the employment, where a night workman 6 B. W. C. C. 188.

in a colliery went to his home one morning Where a workman employed by an under at the regular time, with a broken finger, taker and funeral contractor left home in and there was nothing to suggest that the thy morning uninjured, and returned bear- accident happened his

way

home. ing injuries which were consistent with | Mitchell v. Glamorgan Coal Co. (1907) 23 his having been bruised while carrying a ' Times L. R. (Eng.) 588. coflin, the recorder may find that he suffered! An accident arising out of and in the from accident arising out of and in the course of the employment may be inferred course of his employment. Wright v. Kerri- where a bricklayer returned home from gan (1911] 2 I. R. (Ir.) 301. Concerning work one night, with a sore on the back the decision in Mitchell v. Glamorgan Coal of the thumb of his hand, and there is Co. (1907) 23 Times L. R. (Eng.) 588, evidence that such was a common occurCherry, L. J., said: "Practically all that rence with a bricklayer. Fleet v. Johnson was proved there was that the man went [1913] W. C. & Ins. Rep. (Eng.) 149, 29 out to his work uninjured, and that he Times L. R. 207, 57 Sol. Jo. 226, 6 B. W. came back with a crushed finger. But from C. C. 60. that one fact the court of appeal held In Lovelady v. Berrie (1909) 2 B. W. that the county court judge was at liberty C. C. (Eng.) 62, a good, healthy and steady to infer, first, that the injury was caused workman was employed to pick up cotton by an accident; secondly, that the accident waste about the decks of a ship, and durarose in the course of the employment; ing the employment was sent to work in and, thirdly, that it arose out of the em- a hold. After two hours he came up the ployment.”

ladder of the hold, apparently in great pain, Where a workman was set to do heavy and the foreman sent him home. Upon work which was not his ordinary employ: examination there appeared slight marks ment, and in an hour and a half was found upon his ribs. After three days pneumonia in a very serious condition, necessitating developed, attributable by the attending the summoning of medical aid, and, upon doctor to the injury to his sides, which culhis return to work a fortnight later, com- minated about a week thereafter in his plained of a pain in his back, and subse- death. The court of appeal held that the quently had to go to a hospital, and died death was caused by accident arising out in about a month thereafter, the county of and in the course of his employment, court is justified in inferring that the in although how he received the injury was jury was caused by accident arising out unknown, or at least is not revealed in the of and in the course of his employment. report of the case. Hewitt v. Stanley Bros. [1913] W. C. & Where a puddler in an iron works left Ins. Rep. (Eng.) 495, 109 L. T. N. S. 384, the door of his furnace to go to the black6 B. W. C. C. 501.

smith shop, which was five minutes' walk The arbitrator may find that a miner distant, the route being well lighted and ly. was injured by accident where, when he ing along the bank of a canal, and he was went to work at 5 o'clock in the morning, found drowned the next day in the canal, his knee was uninjured, and at 7 o'clock he the county court judge may find that he was seen at work, with his knee apparently came to his death by accident arising out all right, and an hour or two afterwards he of and in the course of his employment, alwas not all right, but required help in though there is no direct evidence as to how pushing his tub, and was seen to rub his he came to be in the canal. Furnivall v. knee and limp a little, and went home just Johnson's Iron & Steel Co. (1911) 5 B. W. before 3 o'clock, and there was a slight C. C. (Eng.) 43. bruise on his knee, and thereafter his knee Where a gardener was injured while at became swollen, and he died about a week work in the garden by a nail passing after from the injury to his knee, although through his boot and piercing the large there was no direct proof that he received toe, and died from tetanus, which subsethe injury by contact with the tub which quently set in, it was held that he died it was his duty to push. Hayward v. West- from accident arising out of and in the leigh Colliery Co. [1915] A. C. (Eng.) 540, course of his employment, where it was 31 Times L. R. 215, (1915] W. N. 67, 59 Sol. shown that persons working in stables and Jo. 269, 84 L. J. K. B. N. S. 661. 8 B. W. gardens are peculiarly subject to contract C. C. 278, reversing court of appeal, [1914]the disease of tenanus if suffering from any W. C. & Ins. Rep. (Eng.) 21, 7 B. W. C. C. wound or cut, but it was not shown that he 53.

might not have contracted the disease elseWhere the deceased, a station policeman, where. Walker v. Mullins (1908) 42 Ir. might legitimately have been at the spot Law Times, 168, 1 B. W. C. C. 211. where he was injured in the course of his A county court judge may find that death duties, the presumption is that he had been resulted from injury by accident arising out injured by accident arising out of and in of and in the course of the employment, course of his employment, and in the ab. although the only admissible evidence of the sence of evidence to the contrary this must fact of the accident consisted of a notice of be taken to be the fact. Grant v. Glasgow | accident the workman sent to the employer, & S. W. R. Co. [1908] S. C. (Scot.) 187. and the payment, two days before his death,

72

act, 74

man

a. Disabled from earning full wages, nished by the American statutes, see (8 1, subsec. 2 (a)).

post, 223. A workman whose work consisted the workman or his dependents the op

The provision of the act which gives partly of superintendence and partly of tion of taking proceedings independentthe adjustment of certain machines was ly of the act in case the injury is caused held to have been disabled "for a period by the personal negligence or wilful act of at least two weeks” from “earning of the employer, or of some person for full wages at the work at which he was whose act or default the employer is reemployed,” within the meaning of this sponsible, has been held not to prevent subsection, where, although it was shown the workman from maintaining a comthat after the accident he continued to mon-law action, after it had been dework for the same employer at the same termined that his case was not one which wages, it was also proved that he was

came within the purview of the act; unable to attend to the adjustment of as where the workman had not been in machines; that he could do no work ex. the employment for a period of time sufcept that of superintendence; and that ficiently long to entitle him to compensahe would have been unable to earn the tion,73 or where the claimant was not a same wages if he had had to take service “dependent” within the meaning of the under another employer; and it is im

or where the claimant was only material that as a matter of grace, the partially dependent upon the workman employer paid full wages all of the time, and there were others who were wholly so that in fact the workman lost no part dependent upon him.75 And it has been of his wages.71

held not to prevent a workman from e. Alternative remedies open to work withdrawing a claim made under the act,

or dependents (8 1, subsec. before there has been any decision upon 2 (b)).

it.76 Where however, compensation has

been refused upon the merits of the case, As to election to come under the the workman is then not entitled to bring American statutes, see post, 219.

an action independently of the statute.? As to exclusiveness of remedy fur- But the broad view was later taken by of a sum as compensation money to his his father, but was found to have no title wife, who called for it. Harley v. Walsall to insist on the claim, because he had been Wood Colliery Co. [1915] W. C. & Ins. Rep. only partially dependent on his father, (Eng.) 9, 8 B. W. C. C. 86.

while there were others who had been 71 Chandler v. Smith [1899] 2 Q. B. wholly dependent on the father, is not, by (Eng.) 506, 68 L. J. Q. B. N. S. 909, 81 reason of his unsuccessful claim, barred L. T. N. S. 317, 47 Week. Rep. 677, 15 from insisting on an action for damages on Times L. R. 480, followed in Freeland v. account of the death of his father. Blain Macfarlane (1900) 2 Sc. Sess. Cas. 5th v. Greenock Foundry Co. (1903) 5 Sc. Sess. series, 832, 37 Scot. L. R. 599, 7 Scot. L. T. Cas. 5th series, 893, 40 Scot. L. R. 639, 11 456; Great North of Scotland R. Co. v. Scot. L. T. 92. Fraser (1900) 3 Sc. Sess. Cas. 5th series, 76 Rouse v. Dixon (1904] 2 K. B. (Eng.) 908, 38 Scot. L. R. 653, 9 Scot. L. T. 96. 628, 73 L. J. K. B. N. S. 662, 68 J. P. 407,

72 An injured employee who has accepted 91 L. T. N. S. 436, 20 Times L. R. 553, 53 a certain sum of money as compensation Week. Rep. 237. In this case the building under the act is not debarred thereby from upon which the workman was at work was recovering at common law, where he has no not of sufficient height to entitle him to cause of action under the act. Harris v. compensation. Ford (1909) 28 New Zealand L. R. 426.

77 A workman who has claimed 73 Beckley v. Scott [1902] 2 L. R. (Ir.) pensation under the act, and whose claim 504 (workman held not to be precluded has been disallowed by the arbitrator on from maintaining action at common law the ground of his serious and wilful mis. after it had been determined that his case conduct, must be held to have exercised the was not one within the act because he had option given to him, and he is not entitled not been employed two weeks).

thereafter to bring an action for damages 74 A claimant who has been refused com- at common law. Burton v. Chapel Coal Co. pensation on the ground that she was not [1909] S. C. (Scot.) 430. Lord McLaren said: a "dependent” of the deceased workman is "Upon an equitable view of the meaning of not thereby barred from raising an action the proviso, it has been held that if the of reparation at common law, or under the claimant has not a title to claim compensaemployers' liability act 1880, against the tion, because he is not within the class of deceased's employer. M’Donald v. Dunlop persons who are described as dependents, (1905) 7 Sc. Sess. Cas. 5th series (Scot.) his failure to show a title does not preclude 533.

him from setting up his claim at common 75 A son who had claimed compensation law. In such a case there is no real option, under the act on account of the death of because the party has only one claim. The

com

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